Citation Nr: 0600757
Decision Date: 01/10/06 Archive Date: 01/19/06
DOCKET NO. 03-29 109A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Validity of an overpayment of compensation benefits in the
amount of $5,313.60.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Kay Hudson, Counsel
INTRODUCTION
The veteran had active service from June 1989 to July 1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from regional office (RO) award actions
dated in June 2003 and August 2003, which retroactively
reduced the veteran's compensation benefits, resulting in an
overpayment of $5,313.60. The veteran disagreed with the
fact that an overpayment was created.
A decision of the Committee on Waivers and Compromises
(Committee) dated in November 2003, denying the veteran's
September 2003 request for waiver of recovery of the
overpayment, has not been appealed. Accordingly, this Board
decision is limited to the issue of the validity of the debt.
A debtor may dispute the amount or existence of a debt, which
is a right that may be exercised separately from a request
for waiver or at the same time. See 38 C.F.R. § 1.911(c)(1).
In March 2004, the veteran failed for report for a RO
hearing, and in June 2004, he failed to report for a Board
hearing, without explanation. His request for a hearing is
hereby considered withdrawn.
FINDINGS OF FACT
1. On December 20, 2002, the veteran was incarcerated for a
felony conviction, and he remained incarcerated until
November 2003. The RO was notified of this incarceration by
an anonymous phone call in late December 2002.
2. By award actions taken in May 2003 and August 2003, the
veteran's compensation payments were retroactively reduced
from $2,318 to $104 per month, effective February 19, 2003,
the 61st day of his incarceration, resulting in an
overpayment in the amount of $5,313.60.
3. Simultaneously, his spouse was awarded apportioned
compensation benefits in the amount of $2,214 per month,
effective February 19, 2003.
CONCLUSION OF LAW
The veteran's benefits were properly reduced from the 100
percent to the 10 percent rate effective February 19, 2003,
and the overpayment was properly created. 38 C.F.R. §§
1.962, 3.665 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The essential facts are not in dispute; the case rests on the
interpretation and application of the relevant law. The
Veterans Claims Assistance Act of 2000 does not affect
matters on appeal when the issue is limited to statutory
interpretation. See Mason v. Principi, 16 Vet. App. 129
(2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004)
(holding that VCAA notice was not required where evidence
could not establish entitlement to the benefit claimed).
Also, it does not appear that the VCAA is applicable to
claims such as the one decided herein. Cf. Barger v.
Principi, 16 Vet. App. 132 (2002). In Barger, the United
States Court of Appeals for Veterans Claims held that the
VCAA, with its expanded duties, is not applicable to cases
involving the waiver of recovery of overpayment claims,
pointing out that the statute at issue in such cases was not
found Title 38, United States Code, Chapter 51 (i.e. the laws
changed by VCAA).
Regardless, the RO has explained to the veteran the bases for
denial of the claim, and afforded him the opportunity to
present information and evidence in support of the claim, and
there is no indication that any additional notice or
development would aid the veteran in substantiating his
claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); see Dela
Cruz. Thus, any deficiency of notice or of the duty to
assist constitutes merely harmless error. See Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
The veteran contends, in essence, that VA was provided with
timely notification of his incarceration, and that the
request for apportionment of his compensation benefits to his
wife during his incarceration was timely filed, and,
therefore, there should be no overpayment.
An overpayment is created when VA determines that a
beneficiary or payee has received monetary benefits in excess
of the amount to which he or she was entitled. 38 C.F.R.
§ 1.962.
A veteran who is incarcerated in a Federal, State or local
penal institution in excess of 60 days for conviction of a
felony will not be paid compensation in excess of the amount
payable for a 10 percent disability rating. 38 C.F.R. §
3.665. However, an apportionment of some or all of the
veteran's benefits may be granted to the veteran's spouse,
child or children and dependent parents on the basis of
individual need. 38 C.F.R. § 3.665(e). An apportionment in
such circumstances shall be effective the date of reduction
of payments made to the incarcerated person, subject to
payments to the incarcerated person over the same period, if
an informal claim is received within 1 year after notice to
the incarcerated person. 38 C.F.R. § 3.665(f).
In December 2002, the RO was anonymously informed that the
veteran had been incarcerated. Eventually, the RO was able
to verify that the veteran had been incarcerated on December
20, 2002, due to a violation of parole following a felony
conviction.
In February 2003, the veteran was notified, in pertinent
part, that his benefits would be reduced to the 10 percent
rate effective the 61st day of incarceration. In response,
in March 2003, the veteran and his wife both submitted
requests that the veteran's benefits be apportioned to his
wife. The apportionment was granted, and award action was
taken retroactively reducing the veteran's monthly benefits
to $104 (the 10 percent rate), and simultaneously awarding
$2,214 per month to the veteran's spouse, effective the same
date that the veteran's benefits were reduced, February 19,
2003.
(This action was taken in two awards, because initially, in
May 2003, the RO mistakenly reduced the benefits effective
March 22, 2003, after 90 days of incarceration. The correct
effective date of February 19, 2003, was implemented in an
August 2003 award.)
Before these actions were taken, the veteran was paid his
compensation benefits in the monthly amount of $2,318 for the
months of February, March, and April 2003, for a total of
$6,954. However, because of his incarceration in December
2002, he was only due the prorated amount for February, in
the amount of $1,390.80, and payments at the rate of $104 per
month after that. The total amount he was due for this
period was $1,640.40, but since he had actually been paid
$6,954, an overpayment of $5,313.60 was created. Since he
was not owed this money, the overpayment was properly
created. See 38 C.F.R. § 1.962.
The veteran contends that there should be no overpayment,
because the money should have been apportioned to his wife
for this period. In fact, the money was apportioned to his
wife. When she received her payments pursuant to the May and
August 2003 award actions, which created the overpayment in
the veteran's account, she received retroactive awards of
apportioned benefits at the monthly rate of $2,214, effective
back to February 19, 2003. Thus, for the period from
February 19, 2003 through April 30, 2003, the veteran
received his full monthly benefits in the amount of $2,318
per month, plus his wife received her apportioned share at
the rate of $2,214 per month.
However, because the veteran's wife, and not the veteran, was
entitled to the benefits for this period, an overpayment was
created in the veteran's account. In other words, the amount
charged as an overpayment to the veteran was actually paid to
his wife. As to the veteran, the overpayment was properly
created, the debt is valid, and, since his claim fails
because of absence of legal merit or lack of entitlement
under the law, the claim must be denied as a matter of law.
Sabonis v. Brown, 6 Vet.App. 426 (1994).
ORDER
An overpayment in the amount of $5,313.60 is a valid debt,
and the appeal is denied.
____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs